Gender inequality and violence against women

by Prof. Savitri Goonesekere

[Part I]

We live today in a new Sri Lankan environment where the universality of some abiding values and even some issues of global concern are being challenged as unpatriotic, and contrary to our own national consciousness.

A country that has emerged from thirty years of bloodshed and armed conflict through the endeavours of its own elected leaders and established institutions, including the armed forces, will naturally experience a strong sense of national pride. However it is also important to avoid the dangers of insularity.

We must recognise that our desire to find home grown solutions with sensitivity to our own cultures and experiences should not cut us off from benefiting from the inspiration of outside ideas and experiences that have contributed to the wellbeing of our nation and others throughout the world.

Antiquity

Sri Lanka’s history from antiquity to contemporary times demonstrates the powerful impact of a diversity of social economic and political forces and ideologies, most of which have come from across the borders of our island nation.

Even as we celebrate Centre for Gender Studies (CGSUK) at the University of Kelaniya, the first ever within the university system, we need to constantly remind ourselves that the rationale and purpose of gender studies is to work towards the now universally accepted goal of achieving equality between women and men and eliminating gender based discrimination.

This is important in an environment where this objective is sometimes described as an alien discourse, foisted upon the country by an elite of Western educated women and men. Global experience indicates that there can be no sustainable economic growth and development, when women who invariably constitute, as in Sri Lanka, more than 50% of the population, do not have the same life chances and opportunities to contribute to the wellbeing of their nation.

This is why the commitment to eliminate discrimination and inequality, based only on the biological differences between men and women, has become the foundation of the Basic Law of many countries – their national Constitutions, international human rights instruments, and policy documents.

Advancing the concept of gender equality as developed in international law should, I think, provide both the vision and the framework of a Centre for Gender Studies at the University of Kelaniya.

Global agenda

This concept is linked to Article 12 of our own Constitution, which recognises the norm of gender equality as a binding commitment of our governments, reinforcing international treaties that Sri Lanka has ratified, and most recently, Goal 3 of the Millennium Development Goals (MDGs).

A timeframe has now been set for achieving some dimensions of this standard, and monitoring our achievements on including women as equal partners with men in development.

Why prioritise gender equality?

UN Women, the agency recently created to lead the now accepted global agenda on achieving equality for women, has brought together research and information on the reality of gender based discrimination.

Responding to our contemporary concern that all realities should be explained in numbers, and economic performance, a World Bank publication cites UN Women as confirming that “women perform 66 percent of the world’s work, produce 50 percent of the food, earn 10 percent of the income and own 1 percent of the property.”

It has also been clearly demonstrated that countries that have reached greater parity in men and women’s equal access to opportunities and life chances have progressed further on the path to economic development. There is adequate information from research on gender issues already published, including a recent Human Development Report of the Institute of Policy Studies (2012), that Sri Lanka’s progress does not match its constitutional commitments on gender equality, or its obligations under international law, as a party to international treaties.

If these are the realities, it is important that we understand the constraints and the barriers that must be overcome if we are to address and eliminate gender inequality in our society. I believe that the greatest challenge in this regard in contemporary Sri Lanka is the gradual erosion of the value system on gender equality integrated into both our Constitution and International law.

I would like in this lecture therefore to reflect on gender relations in our country from a historical perspective, with a view to placing before you some thoughts on the transformations that have occurred over time, and the critical need to nurture the positive trends and undermine those that can dilute even the progress we have achieved.

The late Prime Minister S W R D Bandaranaike in his speech at the opening of Sri Lanka’s first parliament, remarked, “no people can live on memories alone; it is equally true that history often provides a source of both strength and inspiration to guide them in the future. It is only against the background of the past that the present and the future can be viewed in their correct perspective.”

These are words of wisdom that we in the education system and disciplines of Humanities, Social Sciences and Law in the country have failed to appreciate, by being complicit in denying generations of students, knowledge of the history of their country, the region, and the world. A historical perspective on the transformations that have taken place in gender relations in this country can help us, I think to dispute some myths, and develop insights on how to address the contemporary challenges to achieving gender justice and equality. I interpret the phrase “social transformation” in my lecture in the broadest sense, including the interface between social changes and changes in the political and economic environment that inevitably impact on gender relations.

Social transformation

The study of social transformation and its impact on relations between men and women, and values and perceptions on gender equality becomes especially complex in plural societies with diverse cultures and religions. Those who argue that the concept of gender equality is an alien Western concept and that gender relations in Sri Lanka must be analysed within the framework of our own cultural sensitivities and values, assume a homogenous value base of attitudes, practices, and perceptions, that have not been subject to change or transformation over the centuries of our history.

It also fails to recognise the impact of economic and political change in the transformation of attitudes and beliefs in our plural society of diverse communities.

It is interesting in this context to reflect on the different approaches to gender equality in our personal laws and some of our religious values, and the manner in which they too have been transformed over time in each community. Developments in our personal laws and cultural practices offer insights which show that culture is never static and is the product of diverse influences. The awareness that we can transform values and attitudes embedded in diverse cultures can help to develop a new culture of respect for gender equality. We need advocacy based on analysis and understanding of social changes to challenge ideologies that justify inequality and discrimination against women in the name of culture, and promote instead the concept of gender equality and justice.

I would like to highlight some important facts that have emerged in my own research on our plural personal laws, reflecting also on the changes that we see in the Sinhala Buddhist tradition of the community to which I belong, by ethnicity and religion.

Cultural values

Those of us who are Sinhala Buddhists are familiar with those texts that indicate this religion’s approach to relations between men and women. When the Buddha in his discourses challenged the inequality of caste in the Vasala Sutta, it was on the argument that it was human conduct, one’s deeds and spiritual growth rather than birth and origin that determined whether a person was a Brahmin (of a high caste) or a low outcaste.

This concept of aristocracy and nobility by deed as opposed to birth and origin, and the capacity of all to aspire to spiritual freedom, not only undermined the discrimination based on caste, but had a profound impact on the approach to relations between men and women. It was therefore logical that those early women activists of antiquity led by the Buddha’s own foster mother should succeed in their demand to be ordained as Buddhist nuns. Similarly, the songs of the Buddhist nuns or the ‘Theri Gatha’ of antiquity celebrate the right of women to achieve spiritual freedom, emancipating themselves from abusive husbands or the drudgery of domestic chores. The Buddhist scriptures record the achievements of many women, but Kundelekesi stands out as a woman whose religious discourses and brilliance in debate and discussion on the Dhamma, excelled those of her contemporaries.

Egalitarianism

This egalitarianism in the approach to relations between men and women is reflected in the norms and customary laws of many Buddhist countries, including Sri Lanka, Myanmar and Cambodia. These were all paddy-growing countries in which men and women had different roles, but shared agricultural tasks. This partnership in agricultural activities in Sri Lanka including chena cultivation is highlighted in the work of contemporary feminist scholars on land issues, like Bina Aggarwal. Customary laws therefore recognised the equal and separate rights of women to property.

Kandyan Sinhala law is often highlighted as a discriminatory law reflecting gender bias, because a daughter married in diga loses her inheritance rights. And yet, this loss of rights was linked in the pre-colonial era to economic production, rather than gender bias. A son who became a monk or a daughter who married in diga lost inheritance rights because they were no longer part of the unit of economic production. They reacquired these rights when they returned to the family home, because of divorce or return to lay life. The egalitarianism in the Kandyan law on the right to divorce because of a breakdown in the marital relationship reflected the same egalitarian approach to women, and represented a recognition of their individual identity and personality. Many of the British colonial writers including Robert Knox remark on the obvious freedom and ease of relations between men and women in Kandyan Sinhala society, and the fact that they mingled freely in public places as well as within the family. However this egalitarian tradition has also been transformed over time, due to other influences, sometimes derived from ideologies of male preference in Hinduism, and a Victorian British colonial legal and social tradition.

The influence of Hinduism and the laws of Manu are clearly seen in the Buddhist Customary law of Myanmar. In the laws of Manu, “a woman is under the power of her father in her girlhood, the husband during marriage and her son in widowhood; she is therefore never free.” However those values were not incorporated in Sri Lanka’s Kandyan Sinhala law. Besides Buddhism did not recognise the concept of pollution, nor exclude women from religious worship during menstruation.

Yet in later decades, Sinhala Buddhist girls and women were sheltered and discouraged from participating in religious ceremonies in devales during menstruation. Girls are secluded during puberty rituals. Today there is a growing practice of excluding women from worship at the upper levels surrounding a Bo tree. These practices linked to pollution do not conform to the religious values of Buddhism, but are now considered part of Buddhist religious belief culture and tradition.

Rituals

The Sinhala Buddhist marriage ceremony was a simple one, and non ritualistic. It is full of rituals today, sometimes even excluding the bride’s mother if she is a widow. Puritanical attitudes to dress and the need to impose a dress code for women in public places were suggested some time ago by an official cultural affairs agency. Women worshippers at the Dalada Maligawa, clad in saree and a sleeveless blouse, are now told brusquely to “cover up,” and follow our time honoured Buddhist traditions. Yet the renowned artist Solius Mendis’ famous painting from the Kelaniya temple has a figure of Hemamala carrying the Buddha’s precious relics in her hair, tied in a topknot.

Hemamala’s attire in that famous picture, commonly seen on our beaches and in our hotels today, was not perceived as against our traditional Bhuddhist values. When feminists refer to the entrenched patriarchy in Sinhala Buddhist culture, they often refer to the “Bamunu Matha’ as represented in the admonition of a Sinhala father to his beloved daughter – “Never leave your home without permission from your husband, or a covering for the upper part of your body.” We tend to miss the fact that the admonition comes from the “Piya Bamuna” or the Brahmin father.

The transformation of legal values and their impact particularly in the area of family relationships and religious organisation is also seen in an analysis of later trends in the Kandyan Sinhala law, and Buddhist ecclesiastical law and practice. Persons who belong to the Kandyan community, who value their Kandyan cultural identity, invariably contract marriages under the Kandyan personal law. This system gives spouses the right to divorce by mutual consent or for irretrievable break down of the marriage evidenced by living apart.

However marital property rights reflect gender inequality and discrimination against women. Neither the mother of the bride nor the bride realise that in 1938, colonial policy makers, with the endorsement of local male elites, disenfranchised women of their property rights under traditional Kandyan Sinlala law. These policy makers and elites gave priority to the need for clarity of title to land, which had become a highly marketable asset in the colonial plantation economy. It was inconvenient to recognise a concept that married women could reacquire inheritance rights in ancestral lands, on the dissolution of a marriage. And so the legislation of 1938 transformed the traditional egalitarian principles, and prevented married women acquiring property rights in their paternal ancestral property. A woman married under Kandyan law whose husband does not gift or will property to her today, acquires almost no rights even in a matrimonial home, if it is part of his ancestral property. A daughter who marries in diga, loses for all time any right to paternal property, even if she lives with her parents and cares for them, fulfilling the Buddhist values of the Karaneeya Metha Sutha on care and concern for her elderly parents. Indeed, an unmarried daughter who can inherit immovable property from her father is required to return this property on marriage, if her male siblings are willing to pay the market price of the property to her within one year of her marriage. These patriarchal norms of a colonial era have not been reviewed and changed over 60 years after independence, but are often justified as the cultural and even Buddhist heritage of the Kandyans. In an even more disturbing trend, relatives of Kandyan men who marry Non-Kandyans under the completely different General law of the land, which gives equal rights to widows and daughters, are now claiming that since he was governed by his personal Kandyan law, his property should devolve under Kandyan law that gives preference to male siblings. This has created a situation where both Non-Kandyan and Kandyan women who marry Kandyans experience the same discrimination.

Equality

Patriarchal values have also been entrenched in the un-amended Colonial Buddhist Ecclesiastical Law. Despite the long tradition of equality for women in Buddhism, the tradition of Sanghamitta, the Theris, Kundelekesi and Hemamala, women government officials are debarred from even voting at an election for the Diyawadana Nilame, the male lay custodian of the Temple of the Tooth. We saw the First Lady recently assist in the ritual of placing the relic casket on the perehera elephant at the Navam Perahera, surrounded by many important people. No one said that this was against our Buddhist culture, and tradition. Yet Buddhist culture tradition and ritual are used to justify the discrimination in the Buddhist Ecclesiastical Ordinance that was first introduced by the British colonial political regime. The male hierarchy of the Buddhist clergy have also refused to recognise the women Bhikkhunis who have received ordination according to the Buddhist tradition, outside the country. Since their status is not recognised, they are denied a right to change their national identity cards from lay people to ordained monks – a privilege reserved for males who join the order. Recently some members of Buddhist clergy have disrupted medical clinics engaged in the performance of legal sterilisation operations. The Angulimala Sutta, the Buddhist text emphasises the importance of safe pregnancy for women so that the wellbeing of both mother and child is assured.

Divergences

These same divergences in sources and contradictory values systems can be seen in Muslim Personal Law. The original Code of Muslim Law was brought into the island in the period of colonial rule as a collection of Muslim customs from East Asia, and accepted by a few leaders of the community as conforming to the customs of local Muslim communities. The Tsunami land settlement experience has clarified that the Muslim communities of the Eastern Province in fact follow a legal regime that recognises the separate property rights of women. Yet this system described as “Mukkuvar Law” is considered obsolete in the legal system of Sri Lanka, and has no connection to the original Muslim Code. Besides the colonial Muslim Law Code itself has been replaced. Today principles of Islamic law of the particular sect a Muslim belongs to apply in some specific areas like marriage inheritance and divorce. Nevertheless common norms of family law derived from the General Law apply even to Muslims, in regard to adoption of children and maintenance of Non-Marital children. Marital rape of a child below the age of 12 years is an offence in the Penal Code, even within the concept that Muslim personal law does not recognise a minimum age of marriage.

The codified Muslim law itself recognises non-Muslim law concepts of dowry such as a marital gift of cash to the bridegroom called “Kaikuli,” (or bribe in Tamil). Another type of dowry gift called “Stridhanam” as the term suggests, represents a local custom not recognised in Islamic law. These customs on dowry demonstrate the influence of Tamil customs on Muslim communities. The concept of Kaikuli is therefore accommodated in the current legislation on Muslim law, together with the Islamic law concepts on a woman’s marital property or “mahr”. There is some evidence that the un Islamic practice of “Kaikuli” and of “Stridhanam” as dowry are more important in Muslim communities today than “mahr”, which is even given as a token payment. The Islamic law of inheritance, which prefers males, applies to property rights.

Yet if State land is allocated to Muslims, under State land legislation it is those principles rather than Islamic law that will determine property rights. Despite the fact that the same criminal law applies to Sri Lanka Muslims, adultery is not a crime, and men have a legal responsibility to support non-marital children, there have been recent disturbing incidents where Muslim women who have relationships with Non-Muslim men have been beaten inside mosques or in public places on the basis of decisions taken by elders of the community. This represents a new and dangerous method of informal dispute settlement, which is legitimised on the basis of community values that are not accepted in the legal system of the country.

The Tesawalamai law applies to Tamils of the Northern Province. This system has special principles which apply to sale and use of land in the Northern provinces, but also determine ownership and distribution of marital property, and property of family members, on death. As in the case of other communities, State land legislation containing different principles apply when State land is allocated to persons governed by Tesawalamai. However the customary principles of Tesawalamai law apply to private property. These principles have been significantly modified, because of the superimposition of statutory principles and jurisprudence in the Courts influenced by Roman Dutch law. Significant changes in the content of the law have occurred due to these divergent legal and political influences as well as more recent social practices such as giving donations to a man on marriage. The customary practice of giving separate dowry property to a woman, as her own separate property or “chidenam” has diminished in significance. These transformations in the original principles have invariably undermined and had a negative impact on the rights of women in the Tesawalamai as recorded in the original code of the Dutch colonial period.

A comment made on patriarchal influences in the Mukkuvar law which originally recognised a strong concept of women’s property rights, refers to the manner in which males with their superior power and influence eroded the property rights of women. This could be an apt description of the patriarchal influences that have been justified by reference to culture, and undermined the rights of women under the original Tesawalamai law. The complexities of current Tesawalamai law and Mukkuvar also pose special challenges to the task of land distribution and restitution in the post armed conflict situation in the Northern and Eastern Provinces. It is a matter of regret that the recent circular on land distribution in these areas, (which appear to have been withdrawn), nevertheless adopted a gender-neutral approach. The circular failed to address and accommodate the rights of women, particularly widows in these areas to obtain an important economic asset like land, through proactive interventions by the State.

The discrimination faced by war widows including female heads of household in the North and the East and other parts of the country have been well documented in research findings from the 1980s, and in the recent LLRC Report. Yet widows were considered responsible heads of household and managers of family property, with child care responsibilities, in both Kandyan Sinhala law and Tesawalamai. Their rights came to be expressed in the colonial legal regime as a life interest in the husband’s property – a surviving spouses limited claim in respect of an important asset.

Subsequent developments in legislation and public policy and jurisprudence have restricted the rights of widows. Though the General Law recognises the survivor rights of a widow in the family, the property rights of a widow governed by Kandyan law and Tesawalamai have been eroded over time. There are no legal restraints on a woman’s capacity to be considered a head of household. Our census and statistics and general law on family support and maintenance recognise that men and women share responsibilities as equal partners. And yet, public administration continues to focus on a “male breadwinner” and “head of household,” particularly in relation to social security benefits such as pensions and State land distribution. Widows, who were recognised as important members of the family, and community, were not perceived in our personal laws as “unlucky” people, in some way responsible for the loss they have suffered.

Personal laws

The history of transformation of our personal laws, as well as the Sinhala Buddhist, Tesawalamai and Muslim customs and practices outlined, indicate the fallacy of using a homogenous and pristine Sri Lankan cultural argument to justify gender based discrimination. The conflicting values in the sources of law and the contradictions in the legal norms themselves undermine arguments that there is a homogenous cultural Sinhala Buddhist value system in the country. The sensitivity of successive governments to identity politics has promoted a lack of political will in changing personal laws and family policies that prevent men and women realising the Constitutional promise of gender equality. Sri Lanka ratified the Women’s Convention (CEDAW) in 1981 and has submitted several progress reports to the CEDAW Committee in the last 30 years. Resistance to eliminating discrimination in personal law as well in some other areas of family law has been justified consistently by the government delegations presenting our report, by reference to culture, ignoring the reality of the transformations that have occurred over time. It is also ironical that identity politics has not prevented these same governments introducing laws and policies that impact negatively on other rights of minority communities.

The keynote address delivered at the Centre for Gender Studies, University of Kelaniya.

To be continued